"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, December 22, 2006

More Death Penalty Thoughts

I promise: I am not morbid; but it seems that the swell of activism against the death penalty is reaching a fever-pitch, even among otherwise level-headed Catholics. Few seem interested in defending the system, and consequently, here is Part III of my exploration of whether the death penalty in this country meets the "updated" or "revised" Catholic teaching expressed in Evangelium Vitae (EV) and the Catholic Catechism (CC). This post will further define what the current relevant texts state and what it means in concrete terms for our justice system. In a later post, I will look at some concrete cases to see if our system measures up with what the Church authoritatively proposes (as opposed to what some activists and even bishops or group of bishops wish the Church would propose).

To review briefly, the kernel of this purported "development" about use of the death penalty is found in these two key texts:

Pope John Paul II in EV:
It is clear that, for these purposes [defending public order and ensuring safety] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.
And the Catechism:
If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.
Recall, if you will, that from these texts I distilled the following principles:
1) Recourse to the death penalty is moral generally speaking;
2) The death penaly should be avoided when "non-lethal" means can protect society; and,
3) Recourse to the death penalty even where "non-lethal" means suffice to protect society is moral, but less in conformity with human dignity and would be justified only where exceptional circumstances render it necessary and never for reasons less than those included in the traditional ends of punishment (the "common good").
For purposes of this argument, I will assume that EV and the CC are binding moral principles and not merely hortatory exhortations built upon flawed social science.

Note, however, that I take the texts at face value, and do not expand their meaning. This is vital to understand, because much political agitation by bishops and even by recent popes has proceeded from a failure to construe these passages strictly with a view to reconciling them with the strong tradition of a much broader moral justification for resort to the the death penalty.

An example of an abusive interpretation is this Live Blog session, where Jeff Caruso, Executive Director of an organization called the Virginia Catholic Conference (the two Virginia Catholic Bishops' lobbying arm) explained the Virginia bishops' call for the abolition of the death penalty in Virginia thusly:
The late Pope John Paul II, the U.S. bishops, and the Virginia bishops have all specifically called for an end to the use of the death penalty in countries like ours. That's because the teaching of the Church is that the death penalty cannot be justified whenever nonlethal means are sufficient to protect society from an unjust aggressor. In other words, things like deterrence and the heinousness of the crime are not valid considerations in determining whether the death penalty is appropriate. The only appropriate consideration is whether we could protect society without using it. The US and Virginia bishops are convinced that, with our prison system and the life without parole alternative, the death penalty is not needed in our country and therefore should not be used.
(Emphasis added).

The claims made by Caruso are flat out false. Neither EV nor the CC state that use of the death penalty for deterrence is immoral or impermissible. The strongest textual claim that can be made is that the CC asserts that refraining from use of the death penalty in all but public safety cases is "more in conformity with the dignity of the human person." EV expressly allows that in cases of necessity in order to defend society, the death penalty is appropriate. EV then refers to improvements that purportedly make such necessity rare, but EV does not state that life without parole (LWOP) as an alternative punishment means that there are no cases of necessity. Nor does it state that the specific deterrence of a particular offender is an illegitimate aim of the death penalty.

While LWOP might in certain cases remove the "necessity" of execution, neither EV nor the CC state that a LWOP alternative to execution is always a fact that renders "necessity" to defend society by execution irrelevant. In fact, LWOP does not guarantee that society will be defended, and thus cannot possibly be the "improvements" referred to by EV which supposedly make the proper use of the death penalty rare.

Here are some cases where LWOP did not adequately defend society.

Indeed, as I've mentioned before, it's not unusual for convicted murderers to re-offend either while in prison or after they escape or are released.

That's right: released. The fact of the matter is that most states have mechanisms for parole even of so-called LWOP convicts. In Virginia, for example, a very tough-on-crime state, the law provides for furloughs and even for "geriatric" parole in some murder cases where juries thought they were imposing no-parole sentences. Executive clemency, moreover, allows governors to veto a LWOP sentence and that veto is non-reviewable.

Finally, in the politically volatile atmosphere in which we live, it's not hard to imagine current death penalty abolitionists arguing, should they succeed in stopping the death penalty, that LWOP is a cruel and unusual punishment under the 8th Amendment. I've mentioned this tactic before and indeed, other countries have already abolished LWOP as being cruel. This is all the more craven because LWOP has all along been a ploy by the abolitionists to pry juries away from choosing the death penalty, even though it results in much lenghtier sentences for non-capital defendants. Human Rights Watch goofed and got off-message too soon, and spilled the beans about this next phase for the abolitionists: abolishing life without parole.

So whatever we may think, surmise, or conjecture about, it seems that when EV refers to "steady improvements in the organization of the penal system" which render the public safety need for executions "rare if not non-existent," it surely cannot be referring to LWOP. Perhaps a future authoritative clarification will illuminate just what it is Pope John Paul II was imagining rendered murderers definitively harmless.

In the meantime, of 38 states which allow a death penalty option, 37 states have a LWOP alternative (New Mexico will likely soon have it as well). What this means is that the fact-finder (judge or jury) and always, ultimately, the judge, has the ability to sift through the evidence and determine whether the defendant before him will be a future threat to society.

Sometimes no doubt this consideration involves looking at the depravity of the conduct involved in the case as a "predictor" of future violent conduct. Viewed in this light, we will be able to see that most death sentences in fact are addressed to incapacitating a dangerous offender.

Monday, December 18, 2006

We're All a Little Safer Today

How germane to my upcoming discussion of execution of those who are still pose a threat despite incarceration. Much hubaloo has been made over the "botched" execution of Angel Diaz in Florida (although since he is now dead, I'm not sure you could call the execution "botched"). It appears it took an extra dose of chemicals and 30 extra minutes to carry out the sentence. This unusual circumstance has led to howls of protest from the usual pro-criminal crowd, even though no one can really say whether the process caused Diaz any pain. Almost certainly, however, he did not feel as much pain as the man he shot to death or a prior victim he stabbed to death.

Now, while we all wish executions would occur flawlessly, the fact of occasional human error in administering lethal injection is hardly a compelling argument for abolition. In fact, lethal injection is still the preferred choice of condemned killers in places like Virginia where they are offered a choice between injection and other methods, such as the electric chair.

What's missing in all the hand-wringing and sobbing about Angel Diaz from the abolitionist lobby is, as usual, any mention of his crimes or his criminal history.

He was convicted of shooting to death a manager of a business, Joseph Nagy, during a robbery. Although some have claimed there is doubt about his guilt as the triggerman, Diaz himself admitted he was present at the crime armed with a gun. Although he claimed not to have fired the fatal shots, witness testimony conclusively established that all three robbers fired their weapons during the robbery. "Diaz was considered a major participant in the robbery: arming himself with a large caliber weapon equipped with a silencer, casing the bar from his seat for a long time, firing shots in the air that almost struck a dancer, and abducting a waitress to the back office to open the safe, according to court documents." So, enough about "actual innocence." This guy, even assuming against the evidence he was not the triggerman, was in no sense "innocent" of the murder.

But of greater interest to me were these under-reported facts about the dearly-departed Mr. Diaz:
In 1978, Diaz was sentenced in Puerto Rico to 10 to 15 years in prison for the second-degree murder of a prison drug rehab director. Diaz stabbed the man to death while he was incarcerated for armed robbery.
He escaped custody a year later and fled to Florida. In 1981, he fled the Hartford Correctional Center in Connecticut by holding one guard at knifepoint while another was beaten as he and three other inmates escaped.


Excuse me, but is this not exactly the type of criminal who most merits the death penalty? Indeed, even under the most restrictive interpretation of the novel Catholic revision of the teaching about use of the death penalty, this guy would be exhibit #1 for a justified use of the death penalty.

It's a shame that he was not executed after he killed someone in jail and then escaped prison: Joseph Nagy might still be alive. But alas, in some circles Nagy's life and the life of his earlier victim are apparently worth less than the political points that can be scored off the botched but nevertheless highly merited and just execution of Diaz.

Friday, December 15, 2006

Capital Punishment: "Rare, if not practically non-existent"

Alright, it's a long-time in coming, I'll grant you. But here is my Part Two offering of why the capital punishment system in this country actually conforms even with a "strict" view of contemporary Catholic teaching, which would have it that we should execute "rarely" and only if non-lethal means are unavailing. (Part one of this saga is here).

The first observation is the easiest: the death penalty is in fact a "rare" occurence in this country by any standard.

In 2005, about 16, 692 people were murdered in this country (bet you had no idea this crime was so prevalent). 60 inmates were executed in 2005, which is about average, although the number of executions is in slow decline.

Even my substandard math skills tell me that means that .3 % of murders are punished by an execution.

Granted, this is a rough approximation, since the 60 executions were not carried out in punishment of murders occurring in 2005; they were carried out for murders occurring over several different years prior to 2005. In actuality, therefore, the number of executions as a percentage of the number of homicides is actually even less, since the number of executions in any given year punish murders which occur over a span of different years.

Nevertheless, even viewed as a trend over ten years, we see that since 1995, an average of 77.2 executions were carried out per year, while the average number of homicides per year over the same time period was 18, 916. So taken over a ten year time frame, the average execution-to-murder-committed-rate is a scant .4%. Yes, that's right, less than one-half of 1% of murders are punished by an execution.

Now, "rarity" is commonly defined as "coming or occurring far apart in time; unusual; uncommon; thinly distributed over an area; few and widely separated." As a factual, pragmatic, concrete observation, therefore, there can be no question that executions in this country are only "rarely" carried out in any meaningful sense of that word, as it relates to punishment for homicides.

The anti-death penalty crowd have in fact been boasting about how many fewer executions have been carried out in recent years. NPR just the other day ran a segment trumpeting recent declines in cases where the death penalty is imposed as evidence of a general rejection of capital punishment. In reality, however, homicide rates have declined to the lowest level since the 1960's; in general terms, with fewer homicides you will find fewer death penalty cases. Also, parenthetically, one must wonder whether the resurrected use of the death penalty has something to do with the drop in the homicide rate.

So then, as to the contemporary Church position that executions should occur "rarely," case closed.

Next time, in Part III, we'll see whether the American system of capital punishment on the whole executes those who, unless they were executed, it "would not be possible to otherwise defend society."

Horrors of War

I'm not a moral philosopher or theologian, so I dunno, maybe the war in Iraq is an unjust war and the pres and his minions in Iraq just brutal torture-mongers.

In fact, you can really plumb the depths of the brutality of our unjust warriors and torturers in
this explicit set of photographs documenting the depredations our troops inflict on the innocent Iraqi people. WARNING: explicit content.

Tuesday, December 12, 2006


You saved your beloved Chile from Allende, who vowed to make it a Communist state like his friend Castro's Cuba. Unlike the third-world backwater that Cuba has become under Communism, you made of Chile an economic powerhouse that even the Washington Post has to admire. Unlike the permanent dictatorship of Castro, you stepped down peacefully after after only a dozen or so years, allowing democratic elections, and remained out of politics: having saved Chile, you returned to private life.

Wednesday, December 06, 2006


This is a word that the public should be more familiar with. It means: "the act of intentionally feigning or exaggerating physical or psychological symptoms for personal gain."

Malingering in personal injury cases has caused enormous social costs: "The total cost of health insurance fraud in the United States (including untruthful claims by patients and medical personnel) was more than $59 billion in 1995, resulting in a cost of $1050 in added premiums for the average American family."

Recently a man faked retardation for twenty years so he could receive disability benefits.

Consider now the case of Percy Walton, which has been mentioned before here. I've pointed out before the salient facts:

Jessie and Elizabeth Kendrick, a couple in their 80s, and 33-year-old Archie Moore were Walton's victims. The victims were robbed and shot in the head; Mr Kendrick face down in the carpet listened to his wife beg on her knees for her life before being shot in the head with the gun muzzle pressed against her skull; then he himself was shot in the back of the head the same way as he lay crying. Moore was shot in a separate murder and stuffed in a closet.

Walton plead guilty to capital murder and was sentenced to death. Now his lawyers, aided by the usual crowd of activists and the religious left and even, bizzarely, by the Christian "conservative" Rutherford Institute (which has bought into the liberal religious activist anti death penalty mentality), are pointing to an array of bizzare conduct by Walton and some professionals' opinions that he's nuts, and arguing that his late-found lunacy should spare him from his fate.

Yet fifteen different judges have reviewed this case and agreed that Walton was competent to plead guilty and understands what his punishment is.

In May of 2004 the Federal District Court summarized the facts supporting Walton's competency and sanity both for purposes of pleading guilty and for understanding the nature of his punishment:

When Walton was seventeen, he received the Wechsler Adult Intelligence Scale -Revised (“WAIS-R”) IQ test and achieved a full-scale score of 90, placing him in the “average” range of intelligence. When Walton was eighteen, he completed the WAIS-R IQ test again and achieved a full-scale IQ of 77, placing him in the “low average” range, but not in the mental retardation range. When Walton was twenty, he was again given the WAIS-R IQ test and scored a full-scale IQ of 69. Finally, when Walton was twenty-four, he received the “GAMA” test and scored a 66, a result considered “well below average.” In a footnote, the court observed that the GAMA test heavily relied upon by Walton was generally used as a screening device and was not one of the standardized tests of intellectual function recognized by the Virginia Department of Mental Health. The court also considered the opinions of Dr. Stanton Samenow and Dr. Patricia General, both of whom opined that Walton was not mentally retarded.This court has already found that Walton understands why he is being punished and that he will be punished by execution. Furthermore, the court also finds that Walton has consistently selected electrocution as a method of execution and that he understands that electrocution will result in his death. Before pleading guilty, Walton stated “the chair is for killers”and that he wanted to plead guilty, get “the chair” and “go out like a man.” Dr. Samenow testified that Walton understood that a capital murder charge can result in the death penalty ‘by electric chair or needle.’” More recently, Dr. Mills, the psychiatrist appointed by this court, testified that Walton expressed a preference to die by electrocution. Particularly revealing is the testimony of Allen Glasgow, a rehabilitation counselor who was with Walton on May 23, 2003–just a few days after Walton selected his method of execution. Glasgow testified that Walton communicated well, completed a visitor’s form without assistance, and stated that he wanted his mother to receive his remains upon his death.
Moreover, the Court noted that the defendant had been through a plea colloquy with the trial judge before his guilty pleas were accepted, a colloquy which satisfied the court that Walton understood very specifically what was happening to him.

So isn't it interesting how these professional anti-death penalty advocacy groups tell their audiences only about the supposedly crazy conduct Walton engages in, without mentioning the inconvenient facts that have led the courts to conclude that, in effect, he's nothing but a snivelling malingerer? (We'll leave to another day discussion of the curious concept that a vicious killer should escape death if he's mentally ill).

Governor Tim Kaine, who is personally opposed to capital punishment, has now deferred the execution date of Walton for eighteen months, a time which will be spent desparately trying to produce "findings" that Walton is genuinely mentally deficient, which of course, will give Kaine the political cover he needs to grant clemency to a death row inmate and commute his sentence to life imprisonment.

The DSM-IV-TR states that malingering is suspected if one or more of the following are observed:
1) Medicolegal context of presentation.
2) Marked discrepancy between the person’s
claimed stress of disability and the objective findings.
3) Lack of cooperation during the diagnostic evaluation and in complying with
prescribed treatment regimen.
4) The presence of Antisocial Personality Disorder.

Are any one of these factors present here? "Medicolegal context" is a fancy way of saying that lawyers or legal concerns might have suggested to this person that he should make up symptoms. That circumstance is strongly indicated in this case, where Walton has had access to lawyers and a law library either one of which might have informed him that under Supreme Court precedent, if he does not understand what is happening to him when he is executed, the execution may not proceed.

Second, there is certainly a discrepancy between the claim that Walton cannot understand what is happening to him and the observations of trained medical professionals, observations and conclusions which convinced many different judges that there is no mental deficiency precluding execution.

The third indicator, lack of cooperation, is apparently not present in Walton's case.

Walton could be the textbook example of the fourth indicator, antisocial personality disorder (defined as: "a psychiatric condition characterized by chronic behavior that manipulates, exploits, or violates the rights of others. This behavior is often criminal.").

Hence, not only one, but probably three clinical indicators of malingering are present in this case!

People malinger for financial gain; is anyone surprised that Walton might malinger for his own life?

If Kaine wants to be a creduluous sucker on his own time, fine. But he's defying the will of the judicial process which has found no bar to Walton's sentence being carried out; and he's endangering the public (inmates escape death row from time to time), the prison staff, and other inmates by forcing them unneccessarily to be in constant close contact with a merciless killer.